The Canadian law on workplace violence and harassment continues to develop, particularly in relation to the duty to investigate. Employers should take note of the legislative requirements in the jurisdictions in which they operate. Recently, the Federal Court of Appeal ruled on the issue of when federal employers must appoint an impartial investigator under the Canada Labour Code.
In Canada (Attorney General) v Public Service Alliance of Canada, an employee made a complaint alleging favouritism, unfair treatment and disrespectful treatment in the workplace (including dismissive hand gestures, eye rolling, and verbally demeaning behaviour). The employer conducted a fact-finding mission to review the employee’s concerns and determine whether an investigation was warranted. After conducting a review, including an interview of the complainant, the employer determined that the allegations did not constitute workplace violence and did not warrant an investigation.
The employee’s union took the position that the employer had not simply conducted a fact-finding mission but had investigated the matter without first selecting a “competent person” as required under the Canada Occupational Health and Safety Regulations (the “Regulation”) when an employer becomes aware of workplace violence and is unable to resolve the matter informally with the employee. In order to be considered a “competent person” under the legislation, the investigator must be impartial and must be seen to be impartial by both parties.
The matter was heard by an Appeals Officer under the Canada Labour Code. The Appeals Officer determined that the employer was entitled to consider whether the complaint was related to workplace violence prior to the appointment of a competent person. In this case, the Appeals Officer found that the allegations did not rise to the level of workplace violence.
On judicial review, the Federal Court ruled that the definition of workplace violence under the Canada Labour Code was broad enough to encompass the allegations in the complaint, finding that workplace violence includes forms of harassment including psychological bullying. Further, it held that if informal attempts at resolution are unsuccessful, a competent person must be appointed unless it is “plain and obvious” that the complaint does not relate to workplace violence.
The Federal Court of Appeal agreed with the lower court decision, finding that the Regulation requires employers to appoint a competent person to investigate the complaint unless it is “plain and obvious” that the allegations do not amount to workplace violence. Although the Federal Court of Appeal stated that the intent of the legislation was not to compel an employer to appoint a competent person each and every time it receives a complaint, it did provide that the threshold is quite low.
Notably, the Canada Labour Code applies only to federally regulated employment relationships, which includes federal public sector workers and certain prescribed industries (e.g. telecommunications, international/interprovincial transportation, and aviation). There is no similar express requirement in provincial health and safety legislation that investigators be “competent” and agreed by both parties to be “neutral”. However, employers should pay attention to case law and legislative changes in their respective jurisdictions. For instance, in Ontario Bill 132 has amended the Occupational Health and Safety Act (“OHSA”), and has provided new powers for OHSA Inspectors to order an employer to appoint an impartial investigator to investigate workplace harassment complaints.
The Federal Court of Appeal’s ruling in this case puts substantial limitations on a federal employer’s ability to weed out allegations that do not rise to the level of workplace violence. The Canada Labour Code contains a broad definition of “workplace violence” which means that more often than not an employer will be required to appoint a “competent person” to investigate complaints. Since the parties must agree that the investigator is impartial, it is likely that the employer will need to retain an external investigator in most cases, which can be costly.
